Why You Need a Will, and How to Make One

by Miranda Marquit

Most of us feel as though we will live forever. It seems inconceivable to think that death could be right around the corner. Even the death of your spouse seems more realistic than your own death. However, the reality is that you never know when something unfortunate will happen to take you away from your family. You need to be prepared for that reality — for the sake of your loved ones.

Why You Need a WillIf you don’t make arrangements, though, your assets will be divvied up according to state law. That unfortunate reality is why you need a will. You might be surprised to learn that in some state, spouses don’t automatically get everything. There are states that give your spouse some of your assets, and then divide the rest between kids. In some states, a spouse might have to share with parents, and distant blood relatives of the deceased when there is no clear direction for your assets. Things get even more complicated if you’ve had more than one marriage, and children from each of your marriages. If your estate has to go to probate, that can reduce the value of your estate, since it usually means more court costs and fees.

A will can make your wishes known, and help your family make a better financial transition after your passing. You can avoid some of the fees associated with having the state decide everything, and you can feel comfortable knowing that your estate is divided up as you wish. Your will is the most basic of estate planning documents, and it is something that you definitely should have, since it will designate who cares for your children, as well as where your money goes.

Creating a Will

The will is the most basic declarations of what you want to have happen to your assets. In order to create a valid will, the following conditions must be met:

  • You must be of legal age in your jurisdiction (usually 18)
  • You must demonstrate that you are of sound mind and judgment
  • There must be an intent that the document be your last will and testament
  • Signing the will must be voluntary — you can’t be under duress
  • You should write the will (or have it written for you), and it needs to be witnessed by at least two other parties
  • It helps to designated an executor who can make sure the terms of the will are met
  • Date your will; if you write a new one, indicate that the more recent will replaces the old will in its entirety

Your will should then offer details of what you want done with your property, and where you want your assets to go. Your will can also indicate who should be guardian of your children (ask that person first) if your partner is deceased as well. Realize, though, that you need to update your beneficiaries to match your will. In some cases, what’s in your will can be superseded, as in the case when what’s on a beneficiary form (for life insurance, or a retirement account) doesn’t match up to your will.

It’s actually possible to create a will on your own, as long as the above conditions are met. If you do make it on your own, it can help to have the signatures notarized to make it more “official.” To ease the process, there are legal web sites, like Legal Zoom, that provide you with templates that you can use to create a will fairly quickly and easily. For a reasonable fee, you have your will created on your behalf.

However, many people are more comfortable hiring a lawyer. If you want help as you plan your estate, and you need advice on how to dispose of your property, a knowledgeable estate planning attorney can be a good option. A lawyer costs more, but you might have greater peace of mind. You know that everything will be done according to the law, and you can ask questions about your specific situation and get solid answers about what to expect, and what to do.

No matter how you go about it, though, creating a will is an important part of preparing your family for your demise.

Published or updated July 5, 2012.
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{ 5 comments… read them below or add one }

1 Manette @ Barbara Friedberg Personal Finance

As of this writing, I do not have much assets that will catch the interest of my family and relatives so writing a will is not yet among the options. I am confident that my husband and my kids will take care of what I will be leaving behind.


2 Roger @ The Chicago Financial Planner

Miranda another great post. I can’t tell you how many younger prospective clients I have encountered who are earning good money and are gung-ho about their investments and building wealth, but who have no will, no guardian named, and no or insufficient life insurance to protect their (usually) non-working spouse and young children.

Don’t get me wrong investing is a prime focus of mine, but as a financial planner I have learned to ask about these areas. To your point, if don’t have a will the state may or may may not have one for you. When it comes to children in the case of both parents dying they may opt to place your kids with a family member who doesn’t share your values as parents. Moreover I’ve seen this incite a nasty court battle that ends up depleting the assets that were meant for the children and splitting the family apart.

Planning is key in this area and shouldn’t be put off for any reason.


3 Tony @ A Young Investor

Can I ask you a question? Since the government takes 50% of your assets, is there any way to avoid this tax (besides moving your assets out of the country)?


4 Ryan Guina

Tony, I don’t know where the 50% number came from, but there are many different rules and laws when it comes to estate taxes, and many of them vary by state. In some cases, the spouse can assume everything with no taxes being paid (if they held joint ownership). In other cases, there are ways to use trusts and other legal methods for minimizing taxes when transferring assets to heirs. Each situation is unique, which is why it is important to have a will. It is also a god idea to meet with an estate planner if you have any sizable assets.


5 Kris

Have you used legalzoom to create a will? I tried using nolo a few years ago, and it was so difficult and time consuming that I just stopped. And I hate paying $500 or more to a lawyer, even though I know I need to do this eventually.


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